The Family Court’s emphasis on shared custody has left children vulnerable to abusive fathers, but changes are coming that should put the child’s interests first.
Women repeatedly told me that their history of experiencing domestic violence, even when reported to police, even when it resulted in AVOs, even when there were witnesses, was not just disregarded by the court but caused the women to be regarded with suspicion.
Pip Rae, who worked as a New South Wales police officer for 20 years, dealing primarily with domestic violence, points her finger at systemic issues. Now a private investigator, she says that child protection services and police work at cross-purposes. “Child protection services have three criteria: no risk, significant risk and high risk. Police have innocent or guilty.”
Despite increased social awareness and understanding of the complexities and dangers of family violence, Rae says, the system has deteriorated. “In 2002, due to cost blowouts, the requirement for prosecution shifted from ‘beyond all reasonable doubt’ or prima facie to ‘likelihood of getting a conviction’, and this led to sexual assault and DV charges being less likely to get up, because they are more difficult to prove.”
Angela Lynch, advocacy manager for domestic violence service provider Full Stop Australia, agrees. “Since 2006, in response to lobbying by men’s rights groups, the Family Court must start from a presumption of equal, shared parental responsibility. This works fine in most divorces but those that come before the court are the most complex: 80 per cent of matters in the Family Court have a background of family violence and 70 per cent a background of child abuse.”
Like many similar services, Full Stop has made a submission to the federal government in response to proposed new legislation that would reverse changes made to the Family Court in 2006. The proposals are to place the interest of the child at the centre of the court’s responsibilities when it comes to custody and access arrangements. The consultation period ended this week and Attorney-General Mark Dreyfus has promised to legislate this year.
“The presumption of shared parental responsibility has contributed to a demonisation of mothers, especially if they allege family violence or child abuse,” Lynch says. “They are immediately seen as hostile to the system norm of shared parenting.”
Laura, a lawyer, says she was so traumatised by the violence she experienced at the hands of her ex-partner, which included rape, strangulations and attempts to run her over, she was unable to cope with shared access. She collapsed at handovers and later in the court, where she was accused of “faking”.
Misdiagnosed by a court-appointed expert as suffering from borderline personality disorder – she has since been re-diagnosed with PTSD – she lost custody of her son to the man who had terrorised her.
Laura says many lawyers explicitly warn their clients against alleging family violence or child abuse, even if, as in Laura’s case, their partner was charged by police and convicted.
The consequence of this shared-parenting emphasis in complex Family Court battles has been decades of devastated mothers and children sent back into high-risk situations. Jen’s daughter is an adult now, but no longer has any relationship with either of her parents. As Laura says, “You can leave the violent relationship, but the Family Court won’t let you escape it. Not with your child.”